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Major fashion retailer H&M has been criticised by the Federal Court of Australia for seeking to suppress details of its dispute with a former employee, despite earlier communications from its solicitor that it had “no concern” about media or its reputation.
Justice Michael Lee has ordered H&M Hennes & Mauritz, the Australian corporate subsidiary of the Swedish retailer H&M Group, to compensate former employee Javena Johnson for its interlocutory application for suppression and non-publication orders.
An interim suppression order was granted in April by a registrar who was handed consent orders and did not hear any arguments.
At that time, H&M sought suppression and non-publication of the originating application, concise statement, any concise response, and any information derived from those documents on the basis that it would “prevent prejudice to the proper administration of justice”.
While there have been some cases where suppression orders were granted ahead of an early mediation to protect confidentiality in potential settlement negotiations, the allegations involved in Johnson’s case were “far from scandalous or salacious”.
H&M’s evidence was also “expressed at such a level of generality … that the evidence did not provide, and could never have provided, any concrete basis” for concluding the statutory test of necessity could be satisfied, Justice Lee said in a decision made earlier this month.
“It contemplated a blanket and indiscriminate suppression of a range of material which, on its face, was anodyne.
“With respect, I do not understand how anyone could have ever thought that material of this kind was information which it was necessary, in the interests of justice, to suppress,” Justice Lee said.
Justice Lee said there was “further curiosity” about H&M’s application in circumstances where its solicitor communicated it had no concern about media reporting and its reputation, and alleged it was Johnson who stood to suffer from reputational harm.
H&M abandoned the application at the last minute.
In determining whether costs should have been granted to Johnson, Justice Lee determined there was never any reasonable basis for H&M “ever thinking that a final suppression or non-publication order would have been necessary”.
Justice Lee said it amounted to an unreasonable act within the meaning of section 570 of the Fair Work Act 2009 (Cth), which permits the court to make a costs order where satisfied that a party’s unreasonable act caused the other party to incur costs.
However, in the interests of preserving overall justice between the parties, Justice Lee confined the orders to Johnson’s costs in dealing with the interlocutory application, including preparation of submissions. It will not be extended to any other costs.
Citation: Johnson v H&M Hennes & Mauritz Pty Ltd [2026] FCA 834.
